DUKE 

UNIVERSITY 


LAW  LIBRARY 


ARGUMENT  OE  HON.  JOHN  M.  READ, 

IN  FAVOR  OF  THE  CONSTITUTIONALITY  OF  THE 
SUBSCRIPTION  BY  THE 

CITY  OF  PHILADELPHIA, 

TO  THE  CAPITAL  STOCK  OF  THE 

HEMPFIELD,  AND  PHILADELPHIA,  EASTON, 
AND  WATER  GAP  RAILROAD  COMPANIES, 

DELIVERED  BEFORE  THE 

SUPREME  COURT  OF  PENNSYLVANIA, 

ON  MONDAY,  25th  JULY,  1853. 

IN  THE  CASE  OF 

SHARPLESS  AND  OTHERS  v.  THE  MAYOR, 
ALDERMEN,  AND  CITIZENS  OF  PHILADELPHIA. 


C.  SHERMAN,  PRINTER, 


19  St.  James  Street. 


Digitized  by  the  Internet  Archive 
in  2019  with  funding  from 
Duke  University  Libraries 


https://archive.org/details/argumentofhonjoh1853read 


ARGUMENT 


OF 

HON.  JOHN  M.  HEAD, 


IN  FAVOR  OF  THE  CONSTITUTIONALITY  OF  THE 
SUBSCRIPTION  BY  THE 

CITY  OF  PHILADELPHIA, 

TO  TEE  CAPITAL  STOCK  OF  THE 

HEMPFIELD,  AND  PHILADELPHIA,  EASTON,  AND 
WATER  GAP  RAILROAD  COMPANIES, 

DELIVERED  BEFORE  THE 

SUPREME  COURT  OE  PENNSYLVANIA, 

ON  MONDAY,  THE  25th  JULY,  1853. 

IN  THE  CASE  OF 

SHARPLESS  AND  OTHERS  v.  THE  MAYOR,  ALDERMEN 
AND  CITIZENS  OF  PHILADELPHIA. 


PHILADELPHIA: 

C.  SHERMAN,  PRINTER. 
1853. 


STATEMENT 


A  bill  was  filed  in  May,  1853,  by  William  P.  Sbarpless, 
and  others,  against  the  Mayor,  Aldermen,  and  Citizens  of 
Philadelphia,  and  Charles  Gilpin,  Mayor  of  the  City  of  Phila¬ 
delphia,  in  the  Supreme  Court  of  Pennsylvania,  praying  for 
an  injunction  to  restrain  them  from  subscribing  on  behalf  of 
the  City  of  Philadelphia  to  any  shares  of  stock  of  the  Phila¬ 
delphia,  Easton,  and  Water  Gap  Railroad  Company,  and  the 
Hempfield  Railroad  Company.  To  this  bill,  an  answer  was 
put  in  by  the  defendants.  A  motion  was  made  by  the  plain¬ 
tiffs  for  a  special  injunction;  the  argument  of  which  was  heard 
by  a  full  Court  at  Philadelphia,  on  Monday,  25th  July,  1853, 
Mr.  B.  H.  Brewster  and  Mr.  G.  Mallery  for  the  plaintiffs, 
and  Mr.  J.  M.  Read  and  Mr.  G.  hi.  Dallas  (with  whom  were 
Mr.  E.  Olmsted  (City  Solicitor),  Mr.  J.  P.  Brock,  and  Mr.  St. 
Geo.  T.  Campbell)  for  the  defendants ;  and  on  Tuesday,  the 
6th  September,  1853,  the  Court  at  Pittsburg,  denied  the 
motion  for  an  injunction.  C.  J.  Black  and  Justices  Wood¬ 
ward  and  Knox  agreed  in  refusing  the  injunction,  and  sus¬ 
taining  the  constitutionality  of  the  subscriptions,  and  Justices 
Lewis  and  Lowrie  dissenting.  This  decision  has  finally  settled 
this  question  in  Pennsylvania.  The  following  is  the  argument 
of  Mr.  Read. 


ARGUMENT. 


This  is  a  question  of  deep  interest  to  the  people,  not  only  of 
this  State,  but  of  at  least  twenty-three  states  of  the  Union, 
numbering  upwards  of  twenty  millions  of  souls,  who  have 
adopted  the  policy  of  making  their  public  works  by  the  aid  of 
municipal  subscriptions. 

Twenty-three  states  have  seen  no  constitutional  obstacle  to 
such  subscriptions ;  and,  wherever  the  question  has  been  pre¬ 
sented  for  judicial  decision,  it  has  been  decided  in  favor  of  the 
legislative  power. 

In  eleven  states,  tribunals,  generally  of  the  last  resort,  have 
directly  decided  the  constitutionality  of  such  laws,  and  they 
have  thus  passed  the  ordeal  of  between  forty  and  fifty  of  the 
most  eminent  lawyers  in  the  United  States,  occupying  the 
highest  judicial  stations  in  their  respective  commonwealths; 
It  has  been  the  policy  of  Italy,  France,  England,  Canada,  and 
the  United  States,  beginning  in  Europe  centuries  ago,  and  it 
is,  therefore,  no  new  question  which  is  presented  to  the  consi¬ 
deration  of  the  Court,  but  one  which  has  been  long  ago  settled 
in  all  countries,  by  time,  by  precedent,  by  legislative  and  judi¬ 
cial  authority,  and  by  the  common  sense  of  the  people,  the 
true  sovereigns  in  a  free  government. 

It  is  no  new  doctrine,  and  it  therefore  lies  upon  our  learned 
opponents  to  convince  the  Court  that  all  that  has  heretofore 
been  done  is  in  violation  of  the  written  constitution  of  this 
State.  The  laboring  oar  is  with  them.  It  is  their  duty  to 
show  clearly  that  laws  having  all  the  forms  of  the  constitution, 
and  sanctioned  by  the  uniform  practice  of  the  goyernment,  are 
null  and  void,  because  they  contravene  some  written  provision 
of  our  fundamental  law. 

What  has  been  done  at  all  times,  in  all  countries,  and  under 
all  forms  of  government  with  general  approbation,  cannot  be 


6 


being  printed  from  authentic  reports  furnished  either  by  the 
Reporters,  or  distinguished  members  of  the  bar  in  those  States. 
Upon  a  careful  examination  of  all  these  authorities,  I  think  it 
is  clear  that  the  Courts  in  their  decisions  all  proceed  upon  the 
principle  of  benefit  to  the  subscribing  corporation,  and  not 
upon  the  narrow  and  absurd  idea  that  the  improvement  itself 
must  always  commence  inside  of  the  corporate  territorial 
boundaries.  The  illustration  in  the  earliest  case,  of  Goddin  vs. 
Crump,  in  Virginia,  in  1837,  of  the  removal  of  the  bar  at 
Warwick,  negatives  this  at  once,  and  shows  the  Court  pro¬ 
ceeded  upon  a  broad  and  general  view  of  the  whole  subject, 
which  is  the  spirit  of  all  the  decisions  collected  in  the  Ap¬ 
pendix. 

This  erroneous  view  of  the  authorities  upon  the  part  of  our 
learned  opponents,  leads  to  a  curious  concession — that  if  either 
the  Ilempfield  or  Water  Gap .  Railroads  began  inside  the  city 
of  Philadelphia,  then  these  subscriptions  might  be  constitu¬ 
tional,  but  that  if  they  begin  one  inch  beyond  the  limits  of  the 
city,  then  they  are  clearly  unconstitutional  and  void.  The 
same  principle  applied  to  the  Pennsylvania  Railroad,  would 
make  the  Allegheny  county  subscription  of  one  million  consti¬ 
tutional,  and  the  city  of  Philadelphia,  Spring  Garden,  and 
Northern  Liberties  subscriptions  of  five  millions,  being  one-half 
of  the  whole  capital  stock,  unconstitutional.  Is  it  possible  to 
suppose  that  any  Court  could  adopt  so  absurd  a  construction  ? 
We  know  that  the  Supreme  Courts  of  Ohio  and  Louisiana 
would  not  do  this,  for  they  have  cited  with  entire  approbation, 
the  case  of  The  Commonwealth  v.  M’ Williams,  1  Jones,  61, 
which  sanctioned  all  these  municipal  subscriptions. 

Having  thus  disposed  of  these  preliminary  matters,  I  shall 
now  proceed  to  the  argument  of  the  only  question  really  before 
the  Court,  the  constitutionality  of  the  two  subscriptions  by  the 
city  of  Philadelphia  to  the  Hempfield,  and  The  Philadelphia, 
Easton,  and  Water  Gap  Railroads. 

The  individual  States  of  the  Union  possess  all  the  rights 
of  sovereignty  which  were  not  exclusively  delegated  to 
the  general  government  by  the  Constitution  of  the  United 


7 


States,  with  an  independent  and  uncontrollable  authority  to 
raise  their  own  revenues  for  the  supply  of  their  own  wants. 
Each  State  government  exercises  all  such  rights  of  sovereignty 
in  the  manner  pointed  out  in  its  Constitution,  subject  only  to 
the  prohibitions  and  limitations  contained  in  that  instrument. 

In  each  State  government  there  are  three  departments,  the 
legislative,  the  executive,  and  the  judicial;  the  last  two,  how¬ 
ever,  are  employed  in  executing  and  administering  the  laws  of 
the  land,  and  in  performing  such  duties  as  are  imposed  upon 
them  by  the  Constitution.  The  legislative  power  is  usually 
vested  in  an  elective  body,  composed  of  two  branches,  and  their 
means  of  executing  this  power  is  by  making  laws.  Laws  thus 
made  are  the  supreme  law  of  the  land,  for  a  law  by  the  mean¬ 
ing  of  the  term  includes  supremacy.  It  is  a  rule  of  civil  conduct, 
prescribed  by  the  supreme  power  in  a  State,  for  legislature  is 
the  greatest  act  of  superiority  that  can  be  exercised  by  one 
being  over  another.  Sovereignty  and  legislature  are  indeed 
convertible  terms  :  one  cannot  subsist  without  the  ether. 

In  America,  if  the  law  enacted  by  the  State  Legislature  does 
not  contravene  the  Constitution  of  the  United  States,  we  have 
only  to  look  to  the  State  Constitution  to  see  if  it  violates  any 
provision  of  that  instrument ;  if  it  does  not  it  is  constitutional, 
however  inexpedient  it  may  be,  and  it  must  be  carried  into 
effect  by  the  judicial  and  executive  departments  of  the  govern¬ 
ment. 

We  know  of  no  provision  of  the  Constitution  of  the  United 
States  which  conflicts  with  the  laws  which  are  the  present  sub¬ 
ject  of  discussion,  and  it  is,  therefore,  only  necessary  to  inquire 
whether  they  infringe  any  provision  of  the  Constitution  of  the 
State  of  Pennsylvania. 

By  the  9th  article  (the  declaration  of  rights),  “  everything 
in  this  article  is  excepted  out  of  the  general  powers  of  govern¬ 
ment,  and  shall  for  ever  remain  inviolate.”  By  a  careful 
examination  of  this  article,  and  of  all  the  other  articles  of 
the  Constitution,  we  can  find  no  limitation  upon  the  legislative 
power  of  borrowing  and  raising  money,  and1  of  laying  and  col¬ 
lecting  taxes  to  any  amount,  and  for  any  purpose.  The  people 


8 


of  Pennsylvania  have  placed  no  limit  upon  either  of  these  por¬ 
tions  of  the  legislative  power,  because  they  trusted  to  the  wis¬ 
dom  and  patriotism  of  their  representatives  for  a  judicious 
exercise  of  them.  The  remedy  is  in  the  hands  of  the  people, 
by  a  change  of  their  public  agents,  or  by  a  change  of  the  Con¬ 
stitution. 

This  power  has,  however,  sometimes  been  alleged  (but  always 
unsuccessfully),  to  be  controlled  by  the  last  clause  of  the  10th 
section  of  the  9th  article,  which  is  in  these  words  :  “  Nor  shall 
any  man’s  property  be  taken  or  applied  to  public  use,  without 
the  consent  of  his  representatives,  and  without  just  compensa¬ 
tion  being  made.” 

A  similar  provision  is  to  be  found  in  the  Constitution  of  the 
United  States,  and  in  almost  every  State  Constitution,  and  is 
but  an  enunciation  of  a  right  recognised  by  the  law  of  nations, 
and  which  is  called  sovereign  or  transcendental  property,  or 
the  right  of  eminent  domain.  This  right  or  power  was  origi¬ 
nally  exercised  in  time  of  war,  as  where  a  town  was  to  be  forti¬ 
fied,  and  the  gardens,  lands,  or  houses  of  private  citizens  were 
taken  where  ramparts  or  ditches  were  to  be  raised,  or  mate¬ 
rials  laid  by,  by  private  men  for  their  own  use,  were  taken  and 
made  use  of  in  public  fortifications.  So  in  times  of  general 
scarcity,  where  the  storehouses  and  granaries  of  private  indi¬ 
viduals  are  set  open,  or  in  the  extremities  of  the  State,  where 
moneys  intrusted  with  the  Government  are  seized. 

This  right  of  eminent  domain  in  modern  times,  has  been 
principally  applied  to  the  taking  of  land  for  public  works, 
either  by  the  State  or  its  delegated  agents,  upon  just  compen¬ 
sation  being  made,  and  is  well  described  in  Erskine’s  Principles 
of  the  Law  of  Scotland,  page  108.  “  Every  State  or  Sovereign 
has  a  power  over  private  property,  called  by  some  lawyers 
dominium  eminens ,  in  virtue  of  which  the  proprietor  may  be 
compelled  to  sell  his  property  for  an  adequate  price,  where  an 
evident  utility  on  the  part  of  the  public  demands  it.” 

The  existence  of  this  right  in  the  several  States,  uncontrolled 
by  the  Constitution  of  the  United  States,  is  fully  recognised 
by  the  Supreme  Court  of  the  United  States,  in  the  case 


9 


of  the  West  River  Bridge  Company  v.  Dix,  6  Howard,  507. 
“The  instances  of  the  exertion  of  this  power,”  says  Judge 
Daniel,  “  in  some  mode  or  other  from  the  very  founda¬ 
tion  of  civil  government,  have  been  so  numerous  and  familiar, 
that  it  seems  somewhat  strange  at  this  day  to  raise  a  doubt  or 
question  concerning  it.  In  fact  the  whole  policy  of  the  coun¬ 
try  relative  to  roads,  mills,  bridges,  and  canals,  rests  upon  this 
single  power,  under  which  lands  have  been  always  condemned  ; 
and  without  the  exertion  of  this  power  not  one  of  the  improve¬ 
ments  just  mentioned  could  be  constructed.”  Id.  583. 

It  is  clear  then,  that  this  right  of  eminent  domain  is  not  to 
be  confounded  with  taxation,  which  is  the  daily  business  of  go¬ 
vernment  ;  or  with  the  power  of  borrowing  money,  which  has 
become  almost  equally  familiar.  The  same  rules  are  applicable 
to  it  as  to  the  loss  of  merchandise  thrown  overboard  to  save  the 
vessel.  The  property  taken  is  not  the  contribution  of  its  owner 
to  the  public,  as  his  share  of  the  public  burthen,  but  is  that 
which  he  is  forced  to  sell  them  for  an  adequate  special  compen¬ 
sation,  a  just  price.  The  exercise  of  the  right  of  eminent  do¬ 
main  operates  upon  an  individual,  and  without  reference  to 
the  amount  or  value  exacted  from  any  other  individual,  or  class 
of  individuals. 

The  right  of  eminent  domain  is  an  extraordinary  power,  ex¬ 
ercised  only  in  case  of  necessity  or  manifest  public  utility, 
whilst  taxing  and  borrowing  are  the  ordinary  and  usual  modes 
of  supporting  all  branches  of  the  government. 

This  construction,  which  is  most  ably  portrayed  in  the 
People  v.  Mayor,  &c.,  of  Brooklyn,  4  Comstock,  419  (Appen¬ 
dix  of  Cases,  p.  15),  is  supported  by  another  clause  which  was 
introduced  into  the  Constitution  by  the  Convention  of  1838. 

The  State  or  its  agents,  whether  corporate  bodies  or  indivi¬ 
duals,  had  always  taken  lands  for  public  use  under  the  10th  sec¬ 
tion  of  the  9th  Article,  but  it  sometimes  happened  that  after 
the  property  was  taken  the  corporations  became  insolvent,  and 
the  compensation  was  never  paid.  To  remedy  this  evil  the 
Convention  added  the  4th  section  of  the  7th  article,  in  these 
words:  “The  Legislature  shall  not  invest  any  corporate  body 


10 


or  individual  with  the  privilege  of  taking  private  property  for 
public  use  without  requiring  such  corporation  or  individual  to 
make  compensation  to  the  owners  of  said  property,  or  give 
adequate  security  therefor,  before  such  property  shall  be  taken.” 

'  Now,  this  clearly  has  no  relation  to  the  taxing  power,  nor  is 
it  a  limitation  of  it ;  and  for  the  same  reason  the  10th  section 
of  the  9th  article  has  no  relation  whatever  to  the  power  of  tax¬ 
ation,  which  is  a  part  of  the  legislative  power,  and  which,  by 
the  Constitution  of  Pennsylvania,  is  entirely  unrestricted  by 
any  provision  limiting  either  the  power  itself,  the  power  of  ap¬ 
portioning  it,  or  the  power  of  assigning  to  each  individual  his 
share  of  the  burthen.  The  taxing  power  is,  therefore,  vested 
exclusively  in  the  Legislature,  to  be  exercised  in  such  way  as 
they  may  deem  proper. 

We  have  seen  that  the  legislative  power  is  supreme  and  un¬ 
controlled,  where  it  is  not  restricted  by  the  provisions  of  the 
national  or  state  constitutions,  and,  of  course,  any  branch  or 
portion  of  this  legislative  power  is  equally  supreme. 

“  It  is  a  settled  principle  of  American  Jurisprudence,”  says 
Judge  Baldwin,  “  that  the  transcendent  powers  of  parliament 
devolved  on  the  people  of  the  several  states  by  the  revolution, 
4  Wheat.  651 ;  8  Wheat.  584 ;  2  Pet.  656  ;  it  necessarily  fol¬ 
lows  that  the  only  restraint  on  their  legislative  power  is  that 
imposed  by  their  own,  or  the  Constitution  of  the  United  States. 
2  Peters,  410,  414.”  Bonaparte  v.  Camden  and  Amboy  Rail¬ 
road  Company,  Baldwin’s  Reports,  220. 

The  Legislature  of  Pennsylvania  have,  therefore,  the  power 
to  borrow  money,  and  the  power  to  tax,  and  they  have  always 
exercised  the  right  to  devolve  portions  of  these  powers  upon 
counties,  townships,  boroughs,  cities,  and  other  bodies  corpo¬ 
rate  having  certain  territorial  limits,  such  as  “  The  Guardians 
for  the  relief  and  employment  of  the  poor,  of  the  city  of 
Philadelphia,  the  District  of  Southwark,  and  the  townships  of 
the  Northern  Liberties  and  Penn.”  No  one  has  ever  ques¬ 
tioned  the  right  of  the  City  of  Philadelphia  to  borrow  money, 
to  incur  debts,  and  to  levy  and  collect  taxes,  and  yet  this  is 
only  supported  by  the  simple  grant  of  legislative  power  to  the 


11 


General  Assembly,  "who  have  passed  the  laws  granting  this 
authority  to  a  municipal  corporation.  The  whole  emanates  from 
the  Legislature,  and  is  but  a  creature  of  the  legislative  will. 

The  Legislature  have  exercised  the  power  to  borrow  money 
on  the  credit  of  the  Commonwealth  and  to  lay  taxes,  and  to 
appropriate  the  proceeds  of  both  to  objects  of  a  general,  as 
well  as  to  those  of  a  strictly  local  character,  in  which  no  other 
part  of  the  State  was  interested  except  the  one  immediately 
and  exclusively  benefited.  They  have  invested  $1,632,996  62 
in  various  Canal,  Railroad,  Steam  Tow  Boat,  and  Turnpike 
Companies,  having  subscribed  to  the  stock  and  paid  the  public 
money  for  works  generally  of  a  merely  local,  and  not  of  a 
State  character  No  one  has  disputed  this  exercise  of  their 
power.  So  the  Legislature,  by  the  exercise  of  the  borrowing 
power,  have  incurred  a  debt  of  upwards  of  $40,000,000,  and 
expended  it  in  the  construction  of  works  useful  only  to  por¬ 
tions  of  the  State,  and  some  of  which  were  entirely  useless  to 
everybody,  and  yet  the  constitutionality  of  this  exercise  of 
power  has  been  solemnly  declared  by  the  Supreme  Court. 
Shitz  v.  Berks  County,  6  Barr,  80. 

The  Legislature  have  therefore  laid  taxes,  borrowed  money, 
incurred  debts,  made  Canals  and  Railroads,  and  subscribed  to 
the  stocks  of  various  local  public  works,  and  they  have  autho¬ 
rized  on  various  occasions,  similar  acts  to  be  done  by  various 
municipal  corporations.  All  these  acts  depend  upon  the  same 
clause  in  the  Constitution  which  vests  the  legislative  power  of 
the  Commonwealth  in  a  General  Assembly,  and  which  power 
s  necessarily  transcendent  and  supreme. 

The  Legislature,  therefore,  can  empower  the  city  of  Phila- 
lelphia:  1,  to  levy  and  collect  taxes,  2,  to  borrow  money,  3,  to 
;rade  and  pave  streets,  or  make  a  Railroad  or  Canal,  or  4,  to 
ubscribe  to  a  corporation  intended  for  such  objects,  the  only 
oubt  suggested  being  as  to  whether  such  subscription  should 
e  expended  on  works  within  her  corporate  limits. 

The  general  authority  therefore  under  laws  of  a  special 
haracter  to  perform  all  these  acts  is  not  questioned,  but  only 


12 


to  •what  extent  they  can  be  carried  beyond  the  territorial 
boundaries  of  the  corporation. 

This  resolves  itself  at  last  into  whether  they  are  particularly 
beneficial  to  the  municipal  body,  which  is  clearly  a  subject  of 
legislative  and  not  judicial  discretion,  particularly  when  taken 
in  connexion  with  the  independent  action  of  the  corporation 
itself.  Money  may  he  expended  40  miles  off  to  bring  water  to 
a  city,  or  at  any  necessary  distance  to  introduce  gas.  This  has 
actually  been  done  on  a  larger  or  smaller  scale  at  Boston,  New 
York,  and  Philadelphia.  This  settles  the  general  question ; 
and  when,  therefore,  a  municipal  corporation  is  authorized  to 
lay  out  money  or  loan  its  credit  to  any  work  connected  with 
its  prosperity,  the  sole  remaining  question  can  only  be,  Does 
it  come  within  the  general  rule  ;  will  it  materially  and  certainly 
benefit  its  inhabitants  ?  and  this  is,  after  all,  a  matter  addressed 
to  the  discretion  of  the  legislative  body  and  of  the  municipal 
authorities. 

The  approaches  to  a  large  city  are  of  vital  importance  to 
its  citizens.  “  Good  roads,  canals,  and  navigable  rivers,”  says 
Smith,  in  his  Wealth  of  Nations,  vol.  1,  p.  151,  “by  diminish¬ 
ing  the  expense  of  carriage,  put  the  remote  parts  of  the 
country  more  nearly  upon  a  level  with  those  in  the  neighbor¬ 
hood  of  the  town.  They  are  upon  that  account  the  greatest 
of  all  improvements.  They  encourage  the  cultivation  of  the 
remote,  which  must  always  be  the  most  extensive  circle  of  the 
country.  They  are  advantageous  to  the  town,  by  breaking 
down  the  monopoly  of  the  country  in  its  neighborhood.  Thej 
are  advantageous  even  to  that  part  of  the  country.  Thougl 
they  introduce  some  rival  commodities  into  the  old  market 
they  open  many  new  markets  to  its  produce.” 

“  There  are,  however,”  says  McCulloch  (2  Commercial  Die 
tionary,  p.  414),  “  considerable  clogs  upon  the  continued  in 
crease  of  cities.  The  food  and  fuel  made  use  of  by  the  in 
habitants,  and  the  raw  products  on  which  their  industry  is  t 
be  exerted,  must  all  be  brought  from  the  country ;  and  accord 
ing  as  the  size  of  the  city  increases,  the  distance  from  whic 
its  supplies  must  be  brought  become  so  much  the  greater,  tha 


13 


ultimately  the  cost  of  their  conveyance  may  be  so  great  as  to 
balance  or  more  the  peculiar  advantages  resulting  from  a  resi¬ 
dence  in  town.  Hence  the  impossibility  of  a  large  or  even  a 
considerable  city  existing  anywhere  without  possessing  exten¬ 
sive  means  of  communication,  either  with  the  surrounding 
country  or  with  other  countries :  and  hence,  too,  the  explana¬ 
tion  of  the  apparently  singular  fact  of  almost  all  large  cities 
having  been  founded  on  or  near  the  sea,  or  a  navigable  river. 
Had  London  been  an  inland  town,  50  miles  from  the  shore,  it 
is  abundantly  certain  that  she  could  not  have  attained  to  one- 
third  her  present  size,  but  the  facilities  afforded  by  her  ad¬ 
mirable  situation  on  the  Thames,  for  the  importation  of  all 
sorts  of  produce  from  abroad,  as  well  as  from  other  parts  of 
England,  will  enable  her,  should  her  commerce  continue  to 
prosper,  to  add  to  her  colossal  magnitude  for  centuries  to 
come. 

“  But  all  towns  cannot  be  founded  on  the  sea-coast,  or  the 
banks  of  navigable  rivers  :  and  the  growth  of  those  in  inland 
situations,  must  in  all  cases  depend  on  their  means  of  commu¬ 
nication  with  the  surrounding  country.  Without  our  improved 
roads,  the  great  inland  manufacturing  towns  with  which  Eng¬ 
land  is  studded,  such  as  Manchester,  Leeds,  Birmingham, 
Sheffield,  Bolton,  Preston,  &c.,  could  not  exist.  They  enable 
the  inhabitants  to  obtain  the  rude  ’products  of  the  soil,  and 
the  mines,  almost  as  cheap  as  if  they  lived  in  country  vil¬ 
lages.” 

“  The  influence  that  the  growth  of  a  large  town  has  upon 
agriculture  is  great  and  striking.  ‘I  believe  it  is  true,’  says 
Dr.  Paley,  ‘  that  agriculture  never  arrives  at  any  considerable, 
nuch  less  at  its  highest  perfection,  when  it  is  not  connected 
vith  trade  ;  that  is  when  the  demand  for  the  produce  is  not 
ncreased  by  the  consumption  of  trading  cities,’  (Moral  Phi- 
osophy,  Book  VI.  c.  11.)  But  the  fact  of  their  being  mainly 
'.onducive  to  the  growth  of  cities,  is  not  the  only  advantage 
vhich  improved  roads  confer  upon  agriculture.” 

“  Increased  speed  of  conveyance  is  one  of  the  principal  ad- 


14 


vantages,  that  have  resulted  from  the  formation  of  good  roads 
the  invention  of  steampackets,  &c.” 

In  speaking  of  the  advantages  of  canals,  Mr.  Phillips,  in  his 
general  History  of  Inland  Navigation  says,  “  Were  we  to  make 
the  supposition  of  two  states,  the  one  having  all  its  cities, 
towns,  and  villages  upon  navigable  rivers  and  canals,  that  have 
an  easy  communication  with  each  other ;  the  other  possessing 
the  common  conveyance  of  land-carriage ;  and  supposing  at 
the  same  time  both  states  to  be  equal  as  to  soil,  climate,  and 
industry ;  commodities  and  manufactures  in  the  former  state 
might  be  exported  thirty  per  cent,  cheaper  than  in  the  latter  ; 
or  in  other  words,  the  first  state  would  be  a  third  richer  and 
more  affluent  than  the  second.” 

It  is  hardly  necessary  to  say  that  in  rapid  communication 
with  the  interior  of  the  country,  all  these  modes  of  conveyance 
are  surpassed,  and  in  fact  superseded,  by  Railroads.  What 
therefore  is  said,  as  to  improved  Roads  and  Canals,  may  be 
said  with  tenfold  truth  in  regard  to  Railroads. 

Railroad  communication  is  essential  to  a  large  city,  and  ab¬ 
solutely  and  imperatively  necessary  for  Philadelphia,  met  as 
she  is  on  the  north  and  south  by  the  Railroad  competition  of 
Baltimore,  New  York,  and  Boston. 

Without  Railroads,  trade  must  leave  Philadelphia,  and  they 
are  therefore  essential  to  her  prosperity,  and  to  the  comfort 
and  wealth  of  her  inhabitants. 

The  effect  of  The  Philadelphia,  Easton,  and  Water  Gap 
Railroad,  is  to  bring  back  to  Philadelphia,  the  trade  of  the 
Lehigh  and  adjacent  country,  which  is  fast  leaving  us  for  New 
York,  with  which  there  is  now  a  continuous  Railroad  from 
Easton.  It  connects  besides  not  only  with  the  whole  down¬ 
ward  trade  of  the  Lehigh,  but  also  with  the  Northeastern  Coun¬ 
ties  of  Pennsylvania,  and  finally  with  Western  New  York. 

The  Hempfield  Railroad  is  but  the  left  hand  of  the  Pennsyl 
vania  Railroad,  in  which  Philadelphia  has  already  invested  foul 
millions  of  dollars,  and  upon  which  the  tolls  of  the  present  yea) 
on  an  uncompleted  road  will  be  three  millions  of  dollars.  Th< 
Hempfield  terminates  at  Wheeling  where  it  connects  with  th< 


15 


Ohio  Roads,  and  by  them  and  their  continuations,  with  St. 
Louis,  on  the  direct  route  to  the  Pacific  Ocean.  At  Wheeling 
we  cut  off  a  large  part  of  the  trade  which,  but  for  this  road, 
must  go  to  Baltimore  by  its  great  road,  and  we  thus  secure  to 
Philadelphia  a  compensation  for  whatever  trade  may  be  diverted 
to  Baltimore  from  Pittsburg,  instead  of  passing  through  the 
centre  of  Pennsylvania. 

The  Hempfield  is  but  a  continuation  of  the  Pennsylvania 
Railroad,  and  if  the  subscription  to  that  was  prudent,  this  is 
absolutely  necessary  to  secure  the  profits  of  that  great  invest¬ 
ment. 

We  therefore  assume  that  these  two  roads  are  essential  to 
the  prosperity  of  Philadelphia,  as  much  as  her  Water  and  Gas 
works,  although  in  a  distinct  way. 

With  a  new  road  from  Harrisburg  to  tide- water  at  Philadel¬ 
phia,  with  four  tracks  for  coal,  freight  and  passengers,  which 
must  and  will  be  made,  the  passage  from  here  to  Wheeling, 
would  be  made  in  eight  hours  ;  that  is,  Wheeling  and  its  citi¬ 
zens  would  be  brought  within  one-third  of  a  day  of  Philadel¬ 
phia.  Similar  effects  must  be  produced  by  the  Philadelphia, 
Easton,  and  Water  Gap  Road. 

The  Roman  Roads  under  the  Empire  were  made  and  sus¬ 
tained  at  the  public  expense.  In  England,  the  parish  where 
the  highway  is,  ought  to  repair  of  common  right,  and  one 
parish  may  be  bound  by  prescription  to  repair  a  way  within 
another  parish,  and  the  inhabitants  of  a  township  may  be 
obliged  by  immemorial  usage  to  repair  all  the  roads  within  it. 
Bridges  are  usually  built  and  repaired  by  the  county.  There 
are  also  Turnpike  Roads  which  are  maintained  by  tolls  and 
placed  under  the  management  of  Trustees,  or  Commissioners 
for  a  limited  period  of  time. 

Navigable  Rivers,  are  also  public  highways,  which  have 
sometimes  been  placed  under  the  care  of  municipal  corpora¬ 
tions,  or  they  have  been  charged  with  improving  them  for  the 
public  benefit. 

The  City  of  London  covers  about  600  acres,  and  in  1841  had 


16 


a  population  of  129,251 ;  and  the  Mayor  and  Corporation 
have  for  a  very  long  period  held  and  exercised  the  office  of 
conservators  of  the  River  Thames,  which  gives  them  a  jurisdic¬ 
tion  of  ninety  miles  of  river  navigation,  from  the  Bridge  of 
Staines  to  Yantley  Creek,  for  the  protection  of  the  banks  of 
the  river,  its  navigation  and  fisheries,  and  they  have  a  right  to 
tolls  and  tonnage  dues  for  this  object,  which  twelve  years  ago, 
amounted  to  <£30,000,  or  $150,000. 

They  have  also  granted  licenses  to  different  parties  to  em¬ 
bank  parts  of  the  strand  or  soil  of  the  river  ;  but  these  are  dis¬ 
puted  by  the  crown. 

In  connexion  with  this  control  over  the  largest  river  in  the 
Kingdom,  the  corporation  exercises  large  powers  over  articles 
of  the  first  necessity  imported  into  the  Port  of  London.  The 
duties  on  Coals  collected  by  the  city  are  Is.  Id.  per  ton, 
whether  brought  by  land  or  water,  for  coals  cannot  be  sent 
from  Lancashire  by  Railroad  to  London  without  paying  these 
duties  to  city  collectors.  The  gross  amount  of  coal  duties  for 
1841  was  £152,887  9s.  5d.,  and  the  net  £132,661  5s.  lid. 
sterling,  or  $663,306.  If  coals  were  to  be  taxed  it  is  obvious 
the  tax  should  be  like  the  excise  duties,  general  and  not  local. 
The  dearness  of  fuel  in  London  as  compared  with  its  price  at 
Manchester  is  a  natural  disadvantage  to  the  manufacturing  in- 
terests  of  the  metropolis,  and  it  is  not  the  interest  of  the  citizens 
to  increase  this  disadvantage  by  duties  from  which  every  other 
town  in  England  is  exempt.  It  was  shown  by  the  Hand  Loom 
Commissioners,  that  it  has  been  chiefly  the  price  of  coals  which 
has  changed  the  original  seat  of  many  staple  manufactures, 
and  driven  them  one  after  the  other  to  the  northern  districts. 

Another  cause  of  the  high  price  of  coals  is  the  defective 
wharfage,  and  bad  harbor  regulations  of  the  Port  of  London, 
which  oblige  the  colliers  to  discharge  their  cargo  into  barges, 
and  to  wait  their  turn  to  do  this,  and  which  then  subjects  them 
to  the  charges  of  the  publicans  and  coal-whippers  and  the 
barge-owners  or  lightermen  of  the  Watermen’s  Company. 
Thus  it  happens  that  while  the  duty  on  coals  is  but  Is.  Id.  per 
ton,  it  costs  more  than  this  sum  to  deliver  a  ton  of  coals  into 


17 


a  barge  at  the  ship’s  side  in  the  port,  and  freight  by  the  barge 
and  delivery  at  some  place  above  the  bridge  have  still  to  be 
paid  for.  A  witness  before  the  Coal  Committee  of  1836,  es¬ 
timated  the  loss  thus  incurred  at  4s.  or  $1,  per  ton. 

The  Watermen’s  Company,  which  is  dependent  upon  the 
corporation,  has  a  monopoly  of  labor,  embracing  the  whole 
river  navigation  from  Staines  to  Yantley  Creek.  No  person  can 
ply  for  hire  on  the  river,  except  in  certain  flat-bottomed  ferry 
boats  and  barges  above  Kingston  who  is  not  a  member  of  the 
Watermen’s  Company. 

The  city  has  the  exclusive  right  of  holding  markets  within  a 
circuit  of  seven  miles,  and  levies  dues  in  the  river  upon  ship¬ 
ping,  and  upon  coals,  corn,  wine,  oils,  potatoes,  fruit,  &c.,  and 
it  maintains  by  the  agency  of  various  classes  of  licensed 
laborers,  a  monopoly  of  all  labor  connected  with  the  measure¬ 
ment,  transhipment,  and  discharge  of  all  goods  landed  from 
the  river. 

There  are  fruit  meters,  corn  meters,  oyster  meters,  salt  me¬ 
ters,  corn  porters,  porters  of  general  merchandise  and  shifters, 
all  belonging  to  the  fellowship  of  Billingsgate  Porters,  which  is 
under  the  government  of  the  alderman  of  that  ward. 

The  city  dues  and  other  charges  upon  corn  in  the  Port  of 
London  amount  to  £50,000  or  $250,000  per  annum.  A  me- 
tage  duty  of  Is.  per  ton  is  levied  upon  salt,  another  necessary 
of  life,  of  which  4d.  is  paid  to  the  city.  The  case  of  Thompson 
v.  Daniel  (22  Law  J.  Reports,  Ch.  507,  July,  1853),  decided  by 
Y.  C.  Turner  on  the  8th  January  last,  shows  the  power  of  the 
oyster  meters,  and  states  also  the  general  powers  of  the  city 
in  these  terms :  “  The  right  of  measuring  all  merchandise  and 
wares  and  other  things  brought  into  the  port  of  London,  is 
vested  in  the  corporation  of  London,  exercisable  by  the  Lord 
Mayor  for  the  time  being.” 

The  Corporation  has  also  estates  in  Ireland,  which  are  ma- 
laged  by  a  committee  of  six  aldermen  and  nineteen  common 
:ouncilmen,  called  the  Irish  Society.  These  estates,  which  at 
>ne  time  embraced  the  whole  county  of  Londonderry  and  Cole- 
aine,  were  divided  by  James  between  the  city  and  the  chief 

2 


18 


trading  companies,  in  consideration  of  a  fine  of  <£40,000,  paid 
to  the  crown.  The  city  having  besides  their  own  share  a  con¬ 
trolling  power  over  the  shares  of  the  trading  companies,  as 
trustees  for  the  public  interest,  and  not  only  this,  but  the  civil 
government  of  the  whole  district.  The  exclusive  estates  of  the 
Irish  Society  are  the  undivided  lands  in  Ulster,  namely :  the  City 
of  Derry,  with  15,000  acres,  the  town  of  Coleraine,  with  9000 
acres,  the  fisheries  and  other  lands  incapable  of  equal  division 
or  proportions ;  and  every  by-law  made  in  the  towns  of  Lon¬ 
donderry  and  Coleraine  must  he  sent  to  London  for  approval, 
by  this  committee  of  the  Common  Council. 

It  is  not  necessary  to  enumerate  the  vast  real  and  trust  es¬ 
tates  held  by  the  corporation,  but  these  duties,  and  tolls  col¬ 
lected  on  the  river  and  in  the  port  of  London,  were  estimated 
some  years  ago,  to  amount  to  at  least  £200,000,  or  $1,000,000. 

As  far  back  as  1424,  in  the  3d  year  of  Henry  VI.,  commis¬ 
sions  were  authorized  to  be  awarded  to  certain  persons  to  re¬ 
form  the  river  Ley  (one  of  the  great  rivers),  running  from  Ware 
to  Thames,  and  in  1430,  in  the  9th  year  of  the  same  reign,  an 
act  of  Parliament  was  passed  empowering  the  Chancellor  of 
England  to  grant  his  commission  to  certain  persons  to  scour 
and  amend  the  river  Ley,  in  the  counties  of  Essex,  Hertford, 
and  Middlesex,  with  power  to  take  tolls.  This  act  expired  by 
its  own  limitation,  and  in  1570,  in  the  13th  year  of  Queen 
Elizabeth,  an  act  was  passed  for  bringing  the  river  of  Lee  to  the 
north  side  of  the  city  of  London  (2  Ruffhead,  £>98).  By  this 
act  the  Lord  Mayor,  commonalty,  and  citizens  of  London  and 
their  successors,  were  authorized  to  make  a  new  channel  or  cut 
for  the  said  river  to  pass  through  from  the  town  of  Ware,  and 
for  this  purpose,  to  acquire  upon  just  compensation  the  land 
necessarily  taken  for  it  in  fee  simple,  and  they  were,  within  ten 
years,  to  cut  and  finish  the  same.  The  corporation  were 
obliged  to  pay  for  the  destruction  or  decay  of  mills,  and  the 
new  cut  as  well  as  the  old  river,  was  to  be  free  to  all  the  Queen’s 
subjects;  but  the  jurisdiction,  conservice,  rule,  and  government, 
as  well  of  the  said  new  cut,  river,  and  ground  of  each  side,  as 
also  the  royalty  of  the  fish  and  fishery  of  the  same,  and  profits 


19 


of  the  said  ground,  soil,  and  water,  were  granted  to  the  corpo¬ 
ration. 

An  act  was  passed  in  1585,  in  the  27th  year  of  the  same 
reign,  granting  similar  powers  to  the  Mayor  and  commonalty 
of  the  town  of  Plymouth,  in  the  county  of  Devon,  in  relation 
to  a  cut  from  the  river  of  Mew  (2  Ruffhead,  651). 

In  1605,  in  the  third  year  of  James  I.,  an  act  was  passed  for 
the  bringing  in  of  -a  fresh  stream  of  running  water  to  the  north 
part  of  the  city  of  London,  and  was  amended  by  an  act  of  the 
next  year  (3  Ruffhead,  60,  72).  By  these  acts,  which  are 
nearly  copies  of  the  13  Elizabeth,  Ch.  2,  it  was  to  be  done  by 
and  at  the  expense  of  the  Corporation  of  the  city  of  London. 

In  1603,  the  University  of  Oxford  obtained  the  right  of 
returning  members  to  Parliament  (3  Merewether  and  Stephen’s 
History  of  Boroughs,  1577),  and  in  1623,  in  the  21st  year  of 
James  I.,  an  act  was  passed  for  making  the  river  of  Thames 
navigable  for  barges,  boats,  and  lighters,  from  the  village  of 
Bercot,  in  the  county  of  Oxon,  unto  the  University  and  city 
of  Oxon  (3  Ruffhead,  119).  After  reciting  the  mutual  conve¬ 
nience  that  this  will  be  to  the  city  of  London,  and  to  the  Uni¬ 
versity  and  city  of  Oxford,  and  particularly  to  the  latter  in 
the  cheaper  conveyance  of  coals  and  other  necessaries,  and 
in  the  preservation  of  the  highways  leading  to  and  from  the 
said  University  and  city,  and  in  forming  a  navigable  commu¬ 
nication  between  the  Thames,  above  and  below  Oxford,  the 
Lord  Chancellor  was  authorized  to  appoint  eight  commission¬ 
ers,  four  chosen  by  the  Chancellor  of  the  University,  and  four 
by  the  corporation  of  the  city  of  Oxford,  to  render  navigable 
this  portion  of  the  Thames,  to  make  any  cuts  that  may  be 
necessary  for  that  purpose,  and  to  erect  wharfs,  &c,  in  or  near 
said  river  or  passage. 

The  price  of  land  taken  is  to  be  settled  either  by  agreement, 
)r  in  the  mode  pointed  out  in  the  act,  and  the  agreement  or 
>rder  in  each  case  is  to  be  registered  in  the  Lieger  book  of  the 
aid  University,  and  to  be  enrolled  in  the  Court  of  the  said  city 
»f  Oxford.  The  3d  section  is  in  these  words,  “  and  for  that 
he  said  passage  cannot  be  effected  and  maintained  without  great 


20 


charge,  and  the  principal  benefit  thereof  will  redound  imme¬ 
diately  to  the  University  and  city  of  Oxford  aforesaid.  Be  it 
therefore  enacted  by  the  authority  aforesaid,  That  the  said 
commissioners,  or  the  more  part  of  them,  shall  have  full  power 
and  authority  to  tax  and  assess  the  inhabitants  within  the  said 
University  and  city  of  Oxon,  or  within  either  of  them,  and 
suburbs  thereof,  and  bodies  politic  and  corporate  within  the 
same,  at  such  reasonable  sums  and  payments  for  the  purposes 
aforesaid,  as  they  in  their  discretion  shall  think  meet,  the  said 
sums  and  every  of  them  to  be  disposed  and  employed  for  and 
towards  the  bearing  of  the  charge  of  making  and  maintaining 
of  the  said  passage.” 

“  Sec.  4.  And  whereas,  the  said  University  and  said  city  are 
the  procurers  of  the  said  passage,  he  it  further  enacted  by  the 
authority  aforesaid,  That  the  commissioners  aforesaid,  or  the 
more  part  of  them,  by  virtue  of  this  act,  shall  have  power  and 
authority  from  time  to  time  with  the  consent  of  the  Vice-Chan¬ 
cellor  of  the  said  University  of  Oxford,  and  the  Mayor  of 
the  said  city  of  Oxford,  for  the  time  being,  to  ordain  and  make 
orders  and  constitutions,  for  the  good  and  orderly  usage  of  the 
said  passage,  and  for  all  locks,  wears,  or  turnpikes  thereof,  to 
be  made  and  maintained  at  the  charge  of  the  University  and 
city  of  Oxon  aforesaid.” 

The  5th  Section  empowers  the  commissioners  to  appoint  col¬ 
lectors  of  the  taxes,  who  may  proceed  by  distress  and  sale  of 
the  goods  of  any  person  refusing  to  pay  the  tax  or  assessment 
imposed  upon  him. 

This  act  is  recognised  in  the  7th  section  of  an  act  of  6  Wil¬ 
liam  III.  Ch.  16  (3  Ruffhead,  584). 

By  an  act  passed  in  1700, 11  &  12  W.  III.,  c.  23.  (4  Ruff¬ 
head,  60),  the  corporation  of  the  city  of  Bristol  are  appointed 
conservators  of  the  River  Avon  between  certain  points;  and  by 
the  next  act,  c.  24  (id.  61),  entitled  an  act  to  enable  the  Mayor 
and  citizens  of  the  city  of  Chester  to  recover  and  preserve 
the  navigation  of  the  River  Dee,  duties  are  to  be  paid,  for 
twenty-one  years,  to  the  corporation  to  make  the  river  navigable, 
who  are  to  contract  for  the  new  works,  and  the  river  is  tc 


21 


be  made  navigable  from  the  sea  to  Chester,  and  the  channel, 
turned.  Sand,  and  ground  enclosed,  are  vested  in  the  citizens 
for  ever,  who  may  improve  the  same,  and  take  the  profits  for 
maintaining  and  repairing  the  works. 

An  act  was  passed  in  the  32d  year  of  George  II.,  entitled 
an  act  for  improving  the  navigation  of  the  river  Clyde  to  the 
city  of  Glasgow,  and  for  building  a  bridge  across  the  said 
river,  from  the  said  city  to  the  village  of  Gorbells,  authorizing 
and  empowering  the  magistrates  of  the  City  Council  of  Glas¬ 
gow,  to  clean,  scour,  straighten,  enlarge,  and  improve  the  said 
river  Clyde  from  Dumbuckford  to  the  Bridge  of  Glasgow, 
(10  Ruffhead,  458,  where  it  is  recited). 

An  act  was  passed,  27  Geo.  III.  (1787),  ch.  55,  for  enabling 
the  magistrates  and  town  council  of  Paisley,  to  improve  the 
navigation  of  the  river  Cart,  and  to  make  a  navigable  cut  or 
canal  across  the  turnpike  road  from  Glasgow  to  Greenock. 

In  other  countries,  the  same  policy  has  been  pursued  under 
different  forms  of  Government.  In  the  year  1201  the  City  of 
Padua  made  a  canal  of  11  miles  long,  called  Bassanello,  and 
others  at  subsequent  periods. 

In  France,  the  great  Canal  of  Languedoc,  was  made  at  the 
joint  expense  of  the  King,  and  the  province  of  Languedoc,  and 
in  1753,  the  cost  of  the  canal  between  Aire  and  St.  Omer  was 
valued  at  two  millions.  The  King  charged  himself  with  one 
half,  and  the  rest  was  imposed  upon  the  provinces  of  Artois, 
Flanders,  and  Hainault. 

The  railway  system  has  been  introduced  to  any  extent  in 
France,  only  within  the  last  few  years.  The  City  of  Havre 
guaranteed  an  interest  of  five  per  cent.,  on  a  certain  portion  of 
the  stock  of  the  Havre  and  Paris  Railway,  and  most  of  the 
French  cities  have  contributed  in  the  same  way  to  various 
'ailways,  either  by  guaranteeing  a  minimum  income  from  a 
:ertain  proportion  of  the  shares,  or  by  giving  a  direct  bonus 
o  the  Company.  In  this  they  have  acted  in  all  cases  under 
pecial  laws.  The  departments  have  several  times  given  a 
tonus  to  such  enterprises  the  product  of  an  additional  centime 
elded  to  the  tax. 


22 


A  similar  state  of  circumstances  has  produced  a  similar 
policy  on  this  side  of  the  Atlantic,  which  is  peculiarly  striking 
in  the  instance  of  Canada,  whose  laws  and  customs  are  both 
French  and  English.  The  debt  of  this  province,  principally 
incurred  for  public  works,  is  about  $22,000,000,  and  it  will  be 
increased  by  the  law  authorizing  the  payment  of  $12,000  per 
mile,  for  Railroads.  Public  works  in  Canada,  from  necessity, 
are  chiefly  undertaken  by  the  government  or  municipal  cor¬ 
porations,  and  are  to  a  very  limited  extent  the  result  of  pri¬ 
vate  enterprise.  The  consequence  is  that  there  is  a  large 
amount  of  local  indebtedness,  which  may  probably  be  estimated 
at  two  or  three  millions  of  dollars,  the  interest  of  which  must 
be  provided  for  by  local  taxation. 

The  Great  Western  Railroad  of  Canada,  is  227  miles  long, 
and  is  met  by  a  branch  road  leading  from  Buffalo,  called  the 
Buffalo  and  Brantford  Railroad.  The  Central  Railroads  of 
New  York,  subscribed  for  the  stock  of  the  Great  Western,  to 
the  amount  of  $493,500,  and  municipal  subscriptions  were 
made  in  Canada,  to  the  amount  of  $550,000,  whilst  the  City 
of  Buffalo  subscribed  $150,000,  to  the  stock  of  the  Buffalo  and 
Brantford  Railroad,  the  whole  of  whose  works  are  in  a  British 
Province. 

In  turning  to  the  United  States,  we  find  the  same  policy 
pursued,  and  by  adverting  to  the  Appendix  of  Cases,  and  to 
the  Appendix  of  Laws,  the  Court  will  see  that  twenty-three 
States  at  least  have  passed  laws  of  the  same  identical  cha¬ 
racter,  and  that  in  ten  (now  eleven)  of  these  states,  decisions 
have  been  pronounced  in  favor  of  their  constitutionality. 

It  is  too  late,  therefore,  upon  any  abstract  ground,  depend¬ 
ing  upon  the  mere  theory  of  our  form  of  government,  or  what 
is  sometimes  termed  the  genius  of  our  institutions,  to  deny 
these  powers  to  the  Legislature  of  an  independent  sovereign 
State  of  this  great  confederacy.  Our  institutions  are  the  pro¬ 
duct  of  centuries  of  civilization,  and  what  has  been  done  at  all 
times,  in  all  countries,  and  under  all  forms  of  government,  can¬ 
not  now  be  stigmatized  as  violating  the  inalienable  rights  of 
man,  or  the  first  principles  of  natural  justice. 


23 


The  General  Government  took  the  lead,  in  1828,  in  this  kind 
of  legislation,  and  although  the  power  of  Congress  to  subscribe 
to  works  of  internal  improvement  has  since  been  denied  by 
very  high  authority,  yet  the  right  to  enlarge  the  powers  of 
municipal  corporations  in  the  manner  provided  in  the  act  of 
that  year,  has  never  been  questioned,  and  under  the  recom¬ 
mendation  of  General  Jackson  in  his  annual  message  of 
December,  1835,  that  such  relief  or  remedies  should  be  provided 
as  are  consistent  with  the  power  of  Congress,  in  relation  to  the 
pecuniary  concerns  of  the  District  of  Columbia,  the  Act  of  20 
May,  1836,  which  assumed  these  specific  debts  on  behalf  of  the 
United  States,  was  passed  and  met  the  approval  of  that  dis¬ 
tinguished  statesman. 

Railroads,  like  all  other  great  public  works  requiring  large 
capital,  can  only  be  built  by  combined  or  corporate  wealth. 
They  may  be  made  either  by,  1.  Private  enterprise  taking  the 
form  of  Railroad  corporations  ;  2.  By  the  State ;  3.  By  muni¬ 
cipal  bodies ;  or,  4.  By  a  mixture  of  either  or  both  of  the  lat¬ 
ter  with  the  first,  by  State  or  municipal  subscriptions,  or  loans, 
or  guarantees,  to  railroad  companies. 

In  a  new  country  where  wealth  has  not  been  accumulated  by 
a  succession  of  centuries  of  industry,  public  works,  whether  of 
a  general  or  local  character,  have  been  sometimes  undertaken 
by  the  State,  and  except  in  the  instance  of  New  York,  and  per¬ 
haps  Ohio,  with  very  indifferent  success ;  the  commonwealth 
being  generally  left  with  unproductive  improvements,  a  heavy 
debt,  and  onerous  taxation.  In  some  States,  the  credit  and 
resources  of  the  Government  have  been  exhausted  upon  canals, 
and  no  means  are  left  at  their  disposal  to  make  railroads,  how¬ 
ever  essential  they  may  be  to  the  general  prosperity  of  the 
community. 

There  is  not  sufficient  accumulated  private  wealth  in  the 
United  States  to  make  the  360  railroads  which  are  completed, 
or  are  in  progress  within  her  limits,  and  if  the  States  cannot 
furnish  the  necessary  aid,  it  is  clear  that  they  must  stop,  unless 
the  municipal  divisions  of  States,  which  are  benefited  by  them, 
are  permitted  to  contribute  their  cash,  or  their  credit  to  their 


24 


erection.  The  whole  improvement  of  the  country  depends 
upon  these  municipal  subscriptions  or  contributions,  which  are 
not  now  required  in  England,  because  there,  private  capital  is 
in  great  abundance,  and  can  be  commanded  at  a  moderate  in¬ 
terest  for  any  enterprise  which  promises  any  increased  profit. 

Whilst  State  improvements  have  been  often  unprofitable,  it 
has  been  found  that  the  results  of  private  enterprise  aided  by 
municipal  wealth,  but  not  controlled  by  it,  have  been  extiemely 
fortunate,  and  it  is  only  necessary  to  point  to  one  of  our  own 
works  :  the  Pennsylvania  Railroad,  in  which  Alleghany  and 
Philadelphia  have  six  millions  of  dollars  of  corporate  subscrip¬ 
tions,  as  a  most  brilliant  example. 

In  Georgia,  the  most  flourishing  State  of  the  South,  both  in 
finances  and  resources,  its  internal  communications  by  railroad 
which  are  of  the  very  best  kind,  owe  their  origin  to  the  municipal 
enterprise  of  Savannah  and  Macon,  which  cities,  as  far  back 
as  1833,  became,  with  their  associates,  the  Central  Railroad 
and  Canal  Company  of  Georgia.  The  city  of  Savannah  in 
1840,  had  but  11,214  inhabitants,  and  in  1850,  27,841,  an  in¬ 
crease  of  16,627  souls,  owing  undoubtedly  to  its  railroad  con¬ 
nexions  with  the  interior. 

In  Maine,  the  City  of  Portland,  with  a  population  in  1850 
of  26,819,  gave  its  credit  to  the  amount  of  $2,000,000  to  the 
Atlantic  and  St.  Lawrence  Railroad,  which  begins  at  Portland 
and  ends  at  Montreal,  passing  through  three  States  and  a  Bri¬ 
tish  Province.  This  railroad,  which  is  now  completed,  and  was 
opened  on  Tuesday,  the  19th  of  July,  1853,  is  to  be  connected 
with  Montreal  by  a  bridge  over  the  St.  Lawrence,  which  will  cost 
$7,000,000,  and  there  connect  with  Canadian  railways  which 
are  to  be  carried  to  Lake  Huron.  So  much  has  been  done  at 
the  extremities  of  the  Union  by  two  small  cities,  towards  their 
own  prosperity,  the  one  making  itself  the  great  southern  depot 
on  the  Atlantic,  and  the  other,  pouring  into  its  harbor  the 
large  and  growing  trade  of  the  Canadas,  which  must  make  it 
the  shipping  port  of  the  East. 

In  Maryland,  the  whole  railroad  system  has  depended  en- 


25 


tirely  upon  the  city  of  Baltimore,  which  has  extended  and  is 
extending  its  subscriptions,  its  guarantees,  and  its  loans  to  the 
railroads  of  its  own  and  its  sister  States  of  Virginia  and  Penn¬ 
sylvania. 

In  Virginia,  the  system  of  subscriptions  by  counties,  cities 
and  boroughs  to  railroads,  has  been  carried  to  its  utmost  ex¬ 
tent  by  general  and  special  laws,  and  in  South  Carolina  the 
city  of  Charleston  has  based  its  subscriptions  upon  a  large  clause 
in  its  charter. 

In  Rhode  Island,  the  city  of  Providence  has  subscribed  to 
the  PiovidQnce,  Hartford,  and  Fishkill  Road,  which  passes 
thiough  two  States,  and  into  a  third  State.  In  Louisiana, 
Alabama,  Tennessee,  Mississippi,  and  Kentucky,  the  same 
system  is  established,  and  is  rapidly  progressing. 

The  same  may  be  said  of  Illinois,  Wisconsin,  Iowa,  and  Mis¬ 
souri. 

In  Connecticut,  the  question  was  settled  ten  years  ago,  and 
in  New  York,  it  has  not  been  mooted  since  1840.  In  this  last 
State  they  are  using  municipal  subscriptions  to  a  very  large 
extent,  to  secure  to  themselves  the  trade  of  the  Lakes,  of  the 
Susquehanna,  of  Canada,  and  of  the  West;  and  it  admits  of 
no  doubt  that  if  a  Pennsylvania  Tribunal  were  to  declare  such 
subscriptions  unconstitutional,  it  would  surrender  up  to  New 
York  and  Baltimore,  all  that  internal  commerce,  which  by  a 
judicious  Railroad  system  would  find  its  way  through  our  in- 
teiioi  to  the  waters  of  the  Delaware,  and  to  the  metropolis  of 
the  State. 

The  Ohio  Railroads  have  been  built  by  its  counties,  towns, 
and  cities,  and  such  is  also  the  case  with  Indiana,  and  these 
two  States  having  as  they  think  incurred  a  sufficient  amount  of 
state  and  municipal  debt,  have  by  their  late  constitutions  pro¬ 
hibited  all  increase  of  either,  for  the  purposes  of  internal  im¬ 
provement. 

In  some  of  the  states,  the  power  to  incur  debts  is  limited  or 
restrained  by  their  constitutions. 

But  the  history  and  decisions  of  all,  so  far  as  we  know  them, 
prove  that  (if  not  limited  by  express  provisions  in  their  consti- 


26 


tutions)  the  legislative  power  to  borrow  money,  and  to  tax,  is 
unlimited,  and  its  exercise  depends  upon  the  discretion  of  the 
Legislative  body,  and  that  portions  of  the  same  power  may  be 
intrusted  to  municipal  corporations,  limited  only  by  the  same 
discretion,  neither  of  which  can  be  the  subject  of  judicial  re¬ 
vision. 

The  province  of  Pennsylvania  was  settled  by  William  Penn, 
a  philosopher  and  statesman,  intimately  acquainted  with  the 
institutions  and  history  of  his  native  country.  Our  local 
municipal  divisions  were  accordingly  modelled  after  those  of 
England — we  had  counties  and  townships,  with  a  few  towns 
corporate,  such  as  the  city  of  Philadelphia,  and  the  boroughs 
of  Chester,  Bristol,  and  Lancaster. 

The  roads  were  made  and  repaired  by  the  supervisors,  at 
the  expense  of  the  townships,  and  bridges  were  either  built  by 
them,  or  by  the  county,  where  it  required  more  expense  than 
it  was  reasonable  that  one  township  or  two  adjoining  townships, 
should  bear.  On  the  25th  October,  1701,  William  Penn  grant¬ 
ed  his  charter  to  the  city  of  Philadelphia,  which  occupied  a  little 
more  than  double  the  area  of  the  city  of  London,  and  he  in¬ 
serted  in  it  two  remarkable  provisions,  copied  undoubtedly  from 
the  charter  of  the  metropolis  of  England. 

The  first  was  “  That  the  Sheriff  of  the  said  City  and  County, 
for  the  time  being,  shall  be  the  water-bailiff,  who  shall  and 
may  execute  and  perform  all  things  belonging  to  the  office  of 
water-bailiff  upon  Delaware  River,  and  all  other  navigable 
rivers  and  creeks  within  this  province.” 

The  second  is  in  these  words,  “  And  I  do,  for  me,  my  heirs 
and  assigns,  by  virtue  of  the  King’s  letters  patent,  make,  and 
erect  and  constitute  the  said  city  of  Philadelphia,  to  be  a  port 
or  harbor  for  discharging  and  unloading  of  goods  and  merchan¬ 
dises  of  ships,  boats,  and  other  vessels ;  and  for  lading  and 
shipping  them  in  or  upon  such,  and  so  many  places,  keys,  and 
wharves  there,  as  by  the  Mayor,  Aldermen,  and  Common 
Council  of  the  said  City,  shall  from  time  to  time  be  thought 
most  expedient,  for  the  accommodation  and  service  of  the 
officers  of  the  customs  in  the  management  of  the  King’s  affairs, 


27 


and  preservation  of  his  duties  as  "well  as  for  conveniency  of 
trade.” 

“And  I  do  ordain  and  declare  that  the  said  port  or  harbor 
shall  he  called  the  port  of  Philadelphia,  and  shall  extend  and 
be  accounted  to  extend,  unto  all  such  creeks,  rivers,  and 
places  within  this  province,  and  shall  have  so  many  wharves, 
keys,  landing-places,  and  members  belonging  thereto,  for  land¬ 
ing  and  shipping  of  goods,  as  the  said  Mayor,  Aldermen,  and 
Common  Council  for  the  time  being,  with  the  approbation  of 
the  chief  officer  or  officers  of  the  King’s  customs  shall,  from 
time  to  time,  think  fit  to  appoint.” 

The  conservancy  of  the  river  Thames,  which  resides  in  the 
Mayor  and  Corporation  of  London,  is  the  example  for  vesting 
a  portion  of  a  similar  power  over  the  rivers  and  creeks  of 
Pennsylvania,  in  the  principal  officer  of  a  single  county,  and 
another  portion  of  it  in  the  Corporation  of  the  City  of  Phila¬ 
delphia,  thus  extending  their  jurisdiction  and  authority  far 
beyond  the  defined  boundaries  of  the  county  or  city. 

Acts  were  passed  in  1761  and  1771,  for  improving  the  navi¬ 
gation  of  the  rivers  Schuylkill,  Delaware,  Lehigh,  and  Susque- 
hannah,  and  commissioners  were  appointed  to  collect  subscrip¬ 
tions,  and  to  apply  the  moneys  received  to  such  improvements. 
Some  sums  were  collected  and  expended  on  the  Delaware, 
but  these  and  all  other  works  were  interrupted  by  the  Revolu¬ 
tion. 

Examinations  of  the  State  and  its  rivers  having  been  made 
by  commissioners  appointed  for  the  purpose,  the  Legislature, 
on  the  13th  of  April,  1791  (4  Bioren,  46),  passed  “An  act 
to  provide  for  the  opening  and  improving  sundry  navigable 
waters  and  roads  within  this  Commonwealth,”  by  which  the 
Governor  was  authorized  to  contract  with  individuals,  or  with 
companies,  to  improve  certain  rivers  and  streams,  and  to  open 
certain  roads,  and  certain  specific  sums  were  appropriated 
out  of  the  treasury  of  the  State,  for  the  several  purposes 
specified. 

On  the  21st  of  March,  1808,  an  act  was  passed  for  the  im¬ 
provement  of  the  State  (4  Smith,  495),  by  which  the  Governor 


28 


■was  authorized  to  subscribe  to  the  stock  of  certain  turnpike 
companies,  and  on  the  2d  of  April,  1811,  two  acts  were 
passed,  one  to  encourage  the  constructing  of  certain  great 
leading  roads  within  this  Commonwealth,  and  the  erection 
of  bridges  at  Ilarrisburgh,  Northumberland,  Columbia,  and 
McCall’s  Ferry  (5  Smith,  270),  which  appropriated  the  sum 
of  $825,000  ;  and  the  other  making  appropriations  for  certain 
internal  improvements  (5  Smith,  273),  which  were  generally 
roads,  and  of  a  merely  local  character. 

On  the  24th  March,  1817,  another  act  was  passed,  “  making 
appropriations  for  certain  internal  improvements”  (6  Smith, 
478),  which  included  subscriptions  to  turnpike  roads,  State 
roads,  roads,  navigation  companies,  improvements  of  creeks, 
the  erection  of  piers  at  Chester,  and  wharves  or  embankments 
at  Kitanning  ;  and  the  County  Commissioners  of  Armstrong 
county  were  “  authorized  to  subscribe  and  pay  out  of  the 
County  Treasury  such  sum  of  money  as  by  them  may  be 
deemed  expedient,  to  be  applied  in  aiding  the  erection  and 
completion  of  said  wharves  or  embankments.”  (Id.  483.) 

One  of  these  subscriptions  was  to  a  turnpike  compauy  in 
the  State  of  New  York.  (Id.  482.) 

On  the  26th  March,  1821,  was  passed  “  An  Act  for  the 
improvement  of  the  State”  (7  Smith,  393),  which  contained 
subscriptions  to  the  Union  Canal  Company,  to  various  turn¬ 
pike  and  bridge  companies,  appropriations  to  improving  the 
Ohio  from  Pittsburg  to  Wheeling,  the  Susquehanna  and  its 
branches,  the  Delaware,  the  Beaver,  the  Youghiogeny,  and 
Penn’s  Creek,  and  to  making  and  improving  certain  roads  and 
State  roads.  There  were  other  laws  passed  in  succeeding 
years,  making  appropriations  of  a  similar  character,  and  also 
to  railroads  ;  so  that,  on  the  1st  of  January,  1842,  the  State 
owned,  at  par, 

Turnpike  stock,  ...  $2,328,698  89 

Bridge  stock,  -  -  -  514,350  00 

Canal  Navigation  and  Railroads,  1,182,316  47 


$4,025,365  36 


29 


The  year  1820,  was  one  of  great  depression  in  Pennsyl¬ 
vania,  but  upon  the  gradual  renewal  of  confidence,  the  State,  in 
1826,  in  imitation  of  New  York,  commenced  her  system  of 
internal  improvements,  which,  with  previous  expenditures,  has 
fastened  upon  us  a  debt  of  $40,000,000. 

We  borrowed  money  to  make  the  works,  and  to  pay  the  in¬ 
terest  on  our  loans,  and  we  laid  no  taxes  to  pay  either  princi¬ 
pal  or  interest.  We  made  our  canals  upon  a  gradual  expansion 
of  the  currency.  New  York  had  made  hers  upon  a  reduced 
circulating  medium,  when  labor  was  cheap  and  wages  low.  We 
made  ours  at  a  vast  expense  through  a  mountainous  region,  and 
with  an  intermixture  of  canal  and  railroad,  whilst  theirs  was 
only  a  continuous  big  ditch  through  a  level  country. 

A  small  tax  was  laid,  but  the  recharter  of  the  United 
States  Bank  repealed  it,  and  gave  a  new  impetus  by  its  broad¬ 
cast  subscriptions  to  wild  and  visionary  railroads  and  canals. 
The  ultimate  consequence  was,  the  destruction  of  the  State 
credit,  its  inability  to  meet  its  interest,  the  depreciation  of  the 
State  loans,  the  sale  of  its  available  stocks,  and  the  offer  to 
sell  the  public  works. 

The  combined  effect  of  State  debt  and  State  taxation  has 
been  to  render  unavailable  the  State  credit  for  the  great  rail¬ 
roads  of  the  commonwealth,  and  to  make  their  construction 
entirely  dependent  upon  the  municipal  corporations  benefited 
by  them ;  for  the  same  general  causes,  united  with  the  losses 
sustained  by  our  citizens  in  the  United  States  and  Girard 
Banks,  and  in  the  Banks  of  the  Southwest,  prevented  that 
accumulation  of  private  capital,  which  would  be  sufficient  of 
itself  to  complete  them. 

We  have  carefully  collected  the  laws  of  Pennsylvania,  autho¬ 
rizing  municipal  subscriptions,  and  the  Court  by  inspecting 
them,  will  see  that  they  are  inseparably  interw'oven  with  the 
interests  of  every  section  of  the  commonwealth,  and  have 
become  a  fixed  and  settled  part  of  our  financial  system. 

When  the  State  ceased  to  subscribe  to  turnpike  and  bridge 
companies,  authority  was  given  to  the  commissioners  of  coun¬ 
ties  to  subscribe  to  them,  and  similar  powers  were  aftenvards 

m  ■ 

I 


30 


extended  to  the  supervisors  of  townships  in  regard  to  turn¬ 
pikes.  The  same  policy  was  pursued  in  relation  to  Plank  Road 
Companies. 

The  State  had  a  surfeit  of  canals  and  railroads,  and  the  same 
may  be  said  of  the  individual  citizens  of  Philadelphia,  who 
had  invested  their  private  capital  in  the  Chesapeake  and  De¬ 
laware  Canal,  the  Union  Canal,  the  Schuylkill  Navigation,  the 
Lehigh  Navigation,  the  Reading  Railroad,  the  Philadelphia, 
Germantown  and  Norristown  Railroad,  the  West  Philadelphia 
Railroad,  the  Tide  Water  Canal,  the  Yalley  Railroad,  and  the 
West  Chester  Railroad,  all  or  nearly  all  of  which  works  paid 
no  dividends  in  1846,  when  the  first  subscription  was  made  to 
the  Pennsylvania  Railroad  Company  by  the  city  of  Philadel¬ 
phia.  We  can  therefore  say  with  entire  truth,  that  these  mu¬ 
nicipal  subscriptions  to  railroads  are  absolutely  necessary  to 
develope  the  natural  resources  of  the  State,  to  maintain  its 
trade,  increase  its  wealth,  and  enrich  its  citizens,  and  that  the 
greater  portion  of  all  these  advantages  must  result  to  that 
city  which  is  the  eventual  terminus  of  these  lines,  and  into 
whose  lap  must  be  poured  the  produce  of  the  great  West. 

All  municipal  corporations,  “  being  mere  organizations  for 
public  purposes,  are  liable  to  have  their  public  powers,  rights, 
and  duties  modified  or  abolished  at  any  moment  by  the  Legis¬ 
lature.”  (10  Howard,  534.)  But  the  Legislature,  in  passing 
these  laws,  have  reposed  a  discretion  in  the  city  of  Philadelphia 
to  subscribe  or  not,  as  they  may  deem  most  expedient  for  their 
interests,  and  those  of  their  citizens. 

What,  then,  have  they  done  ?  Exactly  what  the  Common¬ 
wealth  has  formerly  done  itself,  subscribe  to  two  railroads, 
incorporated  by  Pennsylvania,  and  that  in  conformity  with  the 
settled  policy  of  this  State,  which  at  one  time  permitted  the 
cities  of  Lancaster  and  Pittsburg  to  make  or  repair  portions 
of  her  own  great  lines  of  canal  and  railroad. 

In  what  possible  point  of  view,  then,  can  these  acts  be  called 
unconstitutional  ?  If  they  are  so,  one  hundred  laws  must  be 
torn  from  our  statute  book,  and  at  least  1500  similar  subscrip¬ 
tions  in  the  United  States  must  be  declared  void. 


31 


If  they  are  unconstitutional,  the  result  must  inevitably  be, 
not  simply  the  stoppage  of  the  various  railroads  now  in  the 
course  of  construction,  but  that  every  act  of  taking  stock,  bor¬ 
rowing  money,  and  issuing  bonds,  must  he  declared  null  and 
void. 

Pennsylvania  has  suffered  enough  for  repudiation,  unjustly 
imputed  to  her  ;  hut  let  it  once  be  announced  that  her  muni¬ 
cipal  subscriptions,  sanctioned,  as  they  have  been,  by  the  legis¬ 
lative,  executive,  and  judicial  functionaries  of  the  State  are 
unconstitutional,  and  it  will  be  the  last  time  that  a  Pennsyl¬ 
vania  loan,  of  any  kind,  will  be  negotiated  in  a  foreign  market. 

Sidney  Smith,  if  he  were  alive,  could  wish  us  no  worse  fate. 


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Trials. 


L99146 

DATE 


Vol. 


ISSUED  TO 


_  MIL-  9-1  _ J»- 

#1°!  \ 


XX:! 


